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Y O U N G L A W Y E R S J O U R N A L
A Convincing Case of Sex Discrimination
Earlier this year, the Seventh Circuit became
the first circuit to decide that discrimination
on the basis of sexual orientation is a form
of sex discrimination. In
Hively v. Ivy Tech
Community College,
853 F.3d 339 (7th Cir.
2017), a former part-time adjunct professor
sued her previous employer, alleging that
the college denied her repeated attempts
to obtain full-time employment because of
her sexual orientation. The court recognized
that Congress likely “had nothing more
than the traditional notion of ‘sex’ in mind
when it voted to outlaw sex discrimination.”
Moreover, if Congress intended to later
specifically add sexual orientation to the
list of protected classes under Title VII, it
would have done so by formally amending
the legislation. Yet, despite Congress’s prob-
able intent, the Supreme Court opined that
an enacting Congress frequently does not
and cannot anticipate future application
of law. This inability to predict the future
application of a statute, however, cannot
block the statute itself.
The court in
Hively
touched on two
key arguments. First, the comparative
method considers whether, leaving all other
variables the same, the outcome would
have been different if a plaintiff was of the
opposite sex. Essentially, if the plaintiff was
a man married to, dating, or living with a
woman, would the college have made a dif-
ferent decision regarding fulltime employ-
ment. Related to this argument is the idea
of gender conformity and stereotypes,
which the Supreme Court has previously
ruled as a form of sex discrimination. The
court in
Hively
found there was insuf-
ficient facts to delve into a gender stereo-
type consideration. Ultimately, under the
comparative approach, the court in
Hively
found that “any discomfort, disapproval,
or job decision based on the fact that the
complainant—woman or man—dresses
differently, speaks differently, or dates or
marries a same-sex partner, is a reaction
purely and simply based on sex.”
Second, the Seventh Circuit raised the
associational theory, an argument seen in
historic cases like
Loving v. Virginia,
388
U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
(1967), as it pertains to marriage and race.
Under this theory, the statute’s prohibi-
tion of racial discrimination applies even
to those plaintiffs who were discriminated
against based upon those with whom they
associate. The court in
Hively
agreed with
the plaintiff’s appeal to apply the association
theory to sex. Just as the Supreme Court
found that changing the race of one’s
partner impacted the decision regarding
the legality of miscegenation laws at issue
in
Loving,
the court in
Hively
determined
that changing the sex of one partner in a
same-sex relationship would also alter the
outcome regarding employment. Therefore,
the alleged discrimination hinged on the
distinction of sex.
An Adequate Rebuttal
Also this year, the Second Circuit came to
an opposite conclusion on the sexual ori-
entation conundrum. It found that sexual
orientation was not a basis for sex discrimi-
nation under Title VII. In
Zarda v. Altitude
Express,
855 F.3d 76 (2d Cir. 2017), the
plaintiff, a skydiving instructor, claimed
that he was released from his job because
of his sexual orientation. Relying heavily
on a precedent case,
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000), the court held
that discriminating against a homosexual
employee did not rise to the level of sex
discrimination.
Simonton
decided that
the term “sex” under Title VII specifically
refers only to members of a class defined
by gender as opposed to a sexual activity
or affiliation. Additionally, the court in
Zarda
also considered the gender stereo-
type argument, but similar to the
Hively
case, the court found there to be insuf-
ficient facts to support an analysis under
this approach. The plaintiff in
Zarda
may
not have been an ideal plaintiff to further
the theory of sex discrimination on sexual
orientation grounds because the plaintiff
reasoned he may have been fired because
he made a claim for worker’s compensa-
tion. Therefore, the court in
Zarda
was
not convinced that sexual orientation was
wholly at issue in this case and, even if it
was, that it would be covered byTitle VII’s
sex discrimination provision.
The Case that May Set New Precedent
If history is any indication, the Supreme
Court needs the following ingredients to
hear a case: the right plaintiff, whose case
addresses most, if not all, of the arguments
for and against the issue at hand. The split
between circuits already exists, and Ms.
Jameka Evans of Atlanta, Georgia
(Evans
v. Georgia Reg’l Hosp.,
850 F.3d 1248
(11th Cir. 2017)) may present the right
set of facts for the Supreme Court to hear
her case.
Employed as a security officer for an
Atlanta hospital, Evans left her position
as a hospital security guard after what
she alleges was persistent harassment and
even physical assault at the hands of her
employer, because of her sexual orientation
as a woman attracted to individuals of the
same sex. While the plaintiffs in other cases
also allegedly endured embarrassment and
strife, the facts associated with Evans’s case
may be appealing to the Supreme Court
due to the arguments at play.
For example, under the comparative
method, the Court may consider whether
the outcome would have been different
if Evans was a man. Evans could argue
that she would not have experienced such
harassment and assault if she were a man
who wore a male uniform, men’s shoes,
and a low haircut. To go a step further,
she may be able to assert the gender
stereotype argument by noting that her
nonconformity with gender stereotypes
generally associated with women (mainly
feminine-like traits and mannerisms)
resulted in the employer treating her in an
egregious manner. This may incline the
Court to adopt the conclusion that sexual
orientation aligns with the safeguards of
sex discrimination protections.
Additionally, under the association
theory, Evans could argue that her asso-
ciation with women as opposed to men
equates to discrimination in a way that the
Court has already prohibited in
Loving
.
Evans must present specific facts in support
of her theory, such as her interaction with
her former employer’s human resources
manager. According to Evans and a wit-
ness, Evans did not publicize her sexual
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